Human Resources - Working time regulations protocol (L11320)

1. Summary of changes

1.1 This protocol has been updated as follows:

• Essex Police Officer weekly working hours will be monitored over a 17 week period in line with The Working Time Regulations 1998
• opt out Schedule B updated

1.2 Appendix A updated in section 3.1.2.

2. What this protocol is about

2.1 The Working Time Regulations (WTRs) 1998 and subsequent amendments are a health and safety at work measure, which implement the European Working Time Directive 1993 in the UK. The regulations originally came into effect on 1 October 1998, and include basic entitlements and limitations concerning the organisation of working time.

2.2 Essex Police and Kent Police fully support the implementation of these regulations as part of its duty of care and general obligations to ensure the health and safety of all officers and staff. This protocol document sets out to explain the requirements of the regulations, the force’s approach towards implementing them and the requirements on every member of the force in complying with them.

Compliance with this HR protocol and any governing policy is mandatory. This protocol is not, nor is it intended to be, contractual.

3. Detail the protocol

3.1 Legislative provisions

3.1.1 The WTRs stipulate the minimum statutory entitlements regarding working hours. In many ways, police regulations and police staff conditions of service already exceed the provisions of these regulations - therefore, the more favourable terms will be applied.

3.1.2 For further information about the WTRs, please refer to the documents below or appropriate agreements and/or consult a representative of your trade union or staff association.

• Working Time Regulations - Police Officers – Kent Officers is shown in Appendix A
• Working Time Regulations - Police Staff - Kent Staff is shown in Appendix B - valid from 31st May 2020
• Workforce Time Regulations – Police Officers (Fed) - Essex Police is shown at Appendix C
• Workforce Time Regulations – Police Officers (Supt) - Essex Police is shown at Appendix D
• Workforce Time Regulations – Police Staff Essex – Essex Police is shown at Appendix E

3.1.3 In the absence of any such agreement(s), it is acknowledged that the working time regulations will apply.

3.1.4 The main provisions of the WTRs are in respect of the length of the working week, breaks during the working day, breaks in between working days, rest days and annual leave, which is inclusive of public holidays.

3.1.5 The regulations provide for the following for each force:

• Maximum weekly hours - a limit on average weekly working time to 48 hours (though individuals can choose to work longer), calculated over a 17 week period – Kent Police officers, Kent Police staff, Essex Police officers and Essex Police staff
• Minimum daily rest periods - 11 consecutive hours rest in every 24 hours
• Minimum weekly rest breaks - 24 consecutive hours rest in each seven day period or 48 consecutive hours over a 14 day period – Kent Police officers, Kent Police staff and Essex Police officers

For Essex Police Staff this is compatible with PSC conditions for the normal working week of 37 hours and spread and pattern of hours normally around an alternating or rotating shift basis within a seven day working week allow for at least a 24 hour rest interval between each week.

• In work rest breaks (refs) - For people working more than six hours per day, a minimum 20 minutes rest break – Kent Police staff.

For police staff the rostering of work under PSC conditions provides for a minimum of 30 minutes break. – Essex Police staff.

• Police Regulation 22 Normal daily period of duty makes provision for refreshment breaks which are significantly better than those under the Working Time Regulations. Refreshment breaks should normally be planned or part of the normal roster.

In exceptions where breaks cannot be taken, this may take the form of compensatory rest as reasonably practical.

• paid holidays - Minimum 28 days, including public holidays
• a limit on night workers' average normal daily working time to eight hours - By agreement, that is an average of ten hours for Kent Police officers, Kent Police staff and Essex Police staff

By agreement, this is an average of eight hours in Essex Police officers.

• night workers will be offered the opportunity of an annual health questionnaire - Please refer to 3.6

3.2 Definition of working time

3.2.1 Working time within the regulations is defined in three parts as:

• any period during which the member of the force is working
• at the employer’s disposal
• carrying out his/ her activity or duties

3.2.2 To count as working time all three elements must be satisfied.

3.2.3 For a full definition of what counts as working time, please refer to the appropriate workplace agreement. For further clarification, the following exceptions exist in respect of working time:

• ordinarily, routine travel to and from work is not working time, however, if travel is an essential element of a person’s job, then it will be counted as working time
• if a person is on stand-by or on-call, but not working, this does not count as working time. Operational stand-by whilst at work does count as working time

3.2.4 Subject to an individual opt-out, an individual's working time, including overtime, must not average more than 48 hours each week over a rolling reference period of 17 weeks for Kent Police officers, Kent Police staff, Essex Police officers and Essex Police staff. This reference period will be used to calculate average working time, and will apply to all members of the force.

3.2.5 The chief constables of Essex Police and Kent Police acknowledge the need to take all reasonable and practicable steps to protect the health and safety of workers and to ensure compliance with the weekly limit.

3.3 Application of these regulations

3.3.1 The regulations (The Working Time Regulations 1998) apply to the police service as a whole; however, exemptions apply for the performance of critical tasks, which might otherwise have a detrimental impact on service delivery. Essex Police and Kent Police will comply with the WTRs, but it is recognised that at times, exceptional and unavoidable operational exigencies will require the use of the special provisions within the regulations.

3.3.2 Both forces must keep records that show compliance with the working time limits and that night workers have had the opportunity for a health assessment. Additionally, where a worker has opted out, a written record of the agreement must be maintained.

3.3.3 Individuals can enforce their rights by recourse to employment tribunal, however, as both forces are committed to complying with the WTRs, it is hoped that this will not be necessary. If members of the forces have concerns about their hours of work these should be raised with their line manager in the first instance for internal resolution.The Health and Safety Executive have the right to inspect workplace records in respect of the WTRs at any time.

3.4 Record keeping and monitoring

3.4.1 There is a requirement on every member of the force to maintain accurate records of their hours of work, by booking 'on and off' SAP to reflect their actual working hours. Supervisors and managers have a particular obligation to ensure that the hours worked by their staff are recorded and are in accordance with this working time protocol.

3.4.2 SAP will retain records of working time, once completed. These records must be kept for a minimum of two years, and will be made available for inspection by the Health and Safety Executive or other empowered authority as defined in the WTRs. They will also be made available to an individual’s recognised staff association or trade union on receipt of a written request, with the individual’s express consent or as depersonalised data.

3.4.3 Human Resources should bring to the attention of management, any cases where a member of the force is in danger of exceeding the average 48-hour week limit on a regular basis. This will normally be by way of regular reports from SAP.

3.5 Opt-outs

3.5.1 Individual rights to work in excess of 48 hours

3.5.1.1 Any member of the force has the right to voluntarily opt-out, if they want to work in excess of the 48-hour average maximum working week over the 17 week  reference period, however, this must be agreed in writing by completing a copy of:

• Schedule A – Kent officers and staff
• Schedule B – Essex officers
• Schedule C – Essex staff

3.5.1.1.1 An individual can change their minds and opt back in at any time, by giving notice.

3.5.1.2 Any such agreements may be terminated by either the force or the individual. Kent Police officers and Kent Police staff are required to give six weeks’ notice of termination. Essex Police staff are required to give seven days’ notice of termination. Essex Police officers are required to give one months’ notice of termination (except in those cases where a shorter notice period is mutually agreed or required on medical grounds). If at any time, the force believes that their health and safety is being affected by excessive hours, then it will require the worker to take appropriate steps to ensure working hours are reduced.

3.5.1.3 All staff who agree to opt-out will still be required to maintain a record of their hours of work.

3.5.1.4 A copy of the signed agreement should be sent to the Business Centre for inclusion on the individual’s personal file.

3.5.2 Secondary employment, Special Constabulary and voluntary work

3.5.2.1 Any member of the force who wishes to engage in secondary employment, business interests, the special constabulary or voluntary work may be required to sign an opt-out agreement, as detailed below:

3.5.2.2 Secondary employment (and business interests involving secondary employment) - individuals are required to inform the force of any secondary employment undertaken and to declare their hours of work. Where an individual works in two or more separate jobs for Essex Police and Kent Police they must ensure that each supervisor is aware of the hours worked in the other role. Staff may be required to sign an opt-out agreement, agreeing to work in excess of 48 hours per week before they undertake secondary employment. Secondary employment will not be undertaken without the express written authority on a PERS73.

3.5.2.3 Special Constabulary - officers of the special constabulary need to declare hours worked with other employers, and these will need to be balanced with the hours worked for the special constabulary in order to satisfy the requirements of the working time regulations. Where special constables are also employed in police staff roles they should sign an agreement, which enables them to work in excess of the maximum 48-hour week see schedule A.

3.5.2.4 Volunteer workers – volunteers will be expected to comply with the WTRs, in the same way as members of the special constabulary.

3.6 Night work

3.6.1 Night time is defined as being between the hours of 11pm and 6am. A night worker is someone who normally works at least three hours at night, the majority of his/her shifts between those hours, or sufficiently often that they may be said to work such hours as a normal course of their duties. Those who work a rotating shift pattern, which includes time spent working at night will be regarded as night workers for the purpose of the regulations. The current agreement an average of ten hours for Kent Police officer, Kent Police staff and Essex Police staff and by agreement, this is an average of eight hours in Essex Police officers.

3.6.2 Health Services are responsible for ensuring that all night workers are offered the opportunity of completing a confidential medical questionnaire on an annual basis or such other intervals as may be appropriate in the individual circumstances. The completed questionnaire will be assessed by Occupational Health and the individual will be contacted by occupational health regarding any area that needs further clarification. The completed questionnaire will be held on the individual’s medical file within the occupational health unit. All new recruits and police staff who are classified as night workers will be assessed for their suitability for night work as part of the recruitment process.

3.6.3 Where Occupational Health considers that a member of staff has a health condition that is aggravated by night work, the force will consider all available options in order to alleviate the condition.

3.6.4 The 17-week rolling reference period used to calculate average working time, will apply to all night workers within Kent Police force and Essex Police force.

3.6.5 Hazardous night work

3.6.5.1 It is recognised that certain policing duties undertaken during night time may involve special hazards or heavy physical or mental strain. These are operational activities, which involve the use of specialist equipment for which specialist training has been given.

3.6.5.2 Examples are patrol, firearms, dog handling and surveillance. Other roles can be included by agreement, where a risk assessment has been undertaken identifying such hazards or strain in the case of an officer who is a night worker, and shall then be regarded as undertaking those activities for the purposes of WTR.

3.6.5.3 The chief constable has therefore entered into collective agreements with the Police Federation and Unison to modify the maximum eight-hour night shift for night workers, in order to maximise flexibility in utilising shifts of up to ten hours in length.

3.6.5.4 The health and safety adviser will, however, in consultation and with the relevant branch of Unison, the Police Federation, the Superintendents Association and Association of Chief Police Officers (ACPO), keep this element of the regulations under review.

3.7 Recruitment

3.7.1 All schedules of employment will include information concerning the WTRs and in particular details of the 48-hour average working week and night work health questionnaire.

3.8 Rest breaks and compensatory rest

3.8.1 The table below outlines entitlements to daily and weekly rest breaks:

Hours/days worked	Police officer - rest break	Police staff - rest break	Young workers - rest break
In-work refs	Police Regulations - Refs	Worked more than six hours Kent Police staff - 20 minutes Essex Police staff - worked more than six hours is 30 minutes	Worked 4.5 hours or more 30 minutes
Daily rest -24 hours	11*consecutive hours (compensatory rest for hours not received to be taken within next seven days)	11*consecutive hours (compensatory rest for hours not received to be taken within next seven days)	12 consecutive hours
Weekly rest
7 days	24 hour- minimum	24 hour- minimum	48 hour
14 days	2** uninterrupted rest days

3.8.2 In work refreshments breaks for police staff will be unpaid. Wherever possible this break should be taken away from the normal “work station”.

3.8.3 *This may be timed to coincide with existing planned rest breaks, (providing that the total rest period is long enough to allow the worker to receive their compensatory rest entitlement in addition to their normal WTRs minimum rest break entitlement). This does not normally entail any extra time off for staff.

3.8.4 **Where a police officer fails to receive two uninterrupted rest days in a period of 14 days, they will be entitled to an additional two periods of not less than 24 hours uninterrupted rest within the following two weeks which will be accommodated by the re-rostering of rest days in accordance with Regulation 24 Working Time Regulations 1998 and Police Regulations and Determinations 2003, as far as the exigencies of duty permit.

3.8.2 Exclusions

3.8.2.1 There maybe occasions where the specific characteristics of the police service breach the weekly average limits (e.g. deployment of officers for exceptional events which would not be regarded as normal within the everyday activities of a police officer). Officers will not be able to refuse to attend for duty in such circumstances even if they are close to breaching the weekly average/rest intervals, etc.

3.8.2.2 This requirement is compatible with existing Police Regulations 20 “every member of the police force shall carry out all lawful orders and shall at all times punctually and promptly perform all appointed duties and attend to all matters within the scope of their office as constable”.

3.8.2.3 Rostering of rest days and non-working days - all scheduled days off for full time police officers are regarded as rest days. All part-time police officers and members of staff who are part-time or working a flexible or variable working pattern are entitled to two rest days per week. The days that are neither working days nor rest days are non-working days. The two weekly rest days should be scheduled on consecutive days wherever possible. The swapping of rest days and non-working days for the purpose of maximising time accrual on public holidays will not be allowed.

3.9 Provisions for young workers

3.9.1 There are special provisions in respect of young workers; those who have attained the minimum school leaving age but are under 18 years old.

3.9.2 Weekly rest breaks young workers will receive a 48-hour rest period each week (in addition to their 12 hours consecutive daily rest period). For the purposes of this policy a week will commence at 6am on Monday, although this may vary across the divisions/LPA/department.

3.9.3 Young workers must not work a full shift system, and are therefore not classified as night workers. They can however work a shift system between the hours of 6am and 10pm or 7am and 11pm.

4. Equality Impact Assessment (EIA)

4.1 This protocol has been assessed with regard to its relevance to race and diversity equality. As a result of this assessment the protocol has been graded as having a low potential impact.

5. Risk assessment

5.1 There is no specific written risk assessment or health and safety consideration thought relevant to the content of this protocol.

6. Consultation

6.1 The following were invited to provide feedback in the consultation phase during the formulation of this document:

• Unison - Kent and Essex
• Police Federation –Kent and Essex
• Equality and Diversity Co-ordinator
• Health and Safety
• Strategic Change Team
• PSD Superintendent – Kent and Essex
• Policy/Risk
• Superintendents Association – Kent and Essex
• Financial Services – Kent and Essex
• HR
• HR Partners

7. Monitoring and review

7.1 This protocol is due for review every two years. In the interim period the protocol will be reviewed as necessary, particularly as a result of changes in legislation, best practice and other relevant guidance (such as ACAS).

8. Governing force policy. Related force policies/protocols/linked operating procedures

• L1 – HR policy

8.1 Data security

8.1.1 Essex Police and Kent Police have measures in place to protect the security of your data in accordance with our Information Management policy.

8.2 Retention and disposal of records

8.2.1 Essex Police and Kent Police will hold data in accordance with our Records Review, Retention and Disposal policy.

8.2.2 We will only hold data for as long as necessary for the purposes for which we collected.